NYTimes.com Article: Hold It Right There, and Drop That Camera

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Dear Everyone;

An interesting story about communities trying to ban cell phone cameras in public places - showers - locker rooms etc. Is it invasion of privacy by cell phone camera users or is it governmental intrusion through a government bureaucracy and the imposition of a law which could prove difficult to enforce? Or is it a little bit of both?

Ron Getty
SF Libertarian


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Hold It Right There, and Drop That Camera

December 11, 2003


WHAT grabbed my attention," said Alderman Edward M. Burke,
"was that TV commercial when the guy is eating the pasta
like a slob, and the girl sends a photo of him acting like
a slob to the fianc´┐Że."

The commercial, for Sprint PCS, was meant to convey the
spontaneity and reach afforded by the wireless world's
latest craze, the camera phone. But what Mr. Burke saw was
the peril.

"If I'm in a locker room changing clothes," he said, "there
shouldn't be some pervert taking photos of me that could
wind up on the Internet."

Accordingly, as early as Dec. 17, the Chicago City Council
is to vote on a proposal by Mr. Burke to ban the use of
camera phones in public bathrooms, locker rooms and

There will be no provision to protect messy restaurant
patrons. But Mr. Burke wanted to ban the use of camera
phones in places where "the average Chicagoan would expect
a reasonable right to privacy."

Not that tiny cameras couldn't be spirited into intimate
settings before. But now it is a matter of numbers: only a
year after camera phones began to appear in the United
States, there are now six million of them, according to the
market-research firm IDC. And when you marry a camera to a
phone that can transmit the pictures instantly, legislation
increasingly results.

The Chicago proposal, setting a fine of $5 to $500 for
offenders, echoes restrictions adopted in several smaller
jurisdictions. What remains to be seen is how and when such
laws will be enforced.

While privacy experts, municipalities and the American
Civil Liberties Union agree that photos should not be taken
without consent in public bathrooms and showers, there is
no consensus on the best method of balancing the camera
owner's rights with those of the unsuspecting citizen. The
town of Seven Hills, Ohio, backed down less than two weeks
after proposing a ban to avoid possibly costly court
challenges. The mayor, David A. Bentkowski, said he would
leave the matter to state and federal legislation.

Trying to distinguish between a camera phone and any other
cellphone has also complicated matters. The Elk Grove Park
District in suburban Chicago enacted a ban in November that
covered the possession of any cellphone - not just camera
phones - in park-owned restrooms, locker rooms and showers.

"There is no reason to have a cellphone while you're
changing and showering," said Ron Nunes, one of the park
district's commissioners. "I'd rather protect the children
and the public more than someone who wants to call home and
see what's for dinner." Fresh in the town's memory was a
2001 incident in which a man used a fiber-optic camera to
secretly take pictures of children in a park shower.

So far, there have been no complaints in Elk Grove about
cellphone transgressions. But Mr. Nunes concedes, "It's
darn near impossible to enforce." There will be no searches
of bags, he said, and park officials will not summon the
police if a cellphone is found in a restricted area.

"We're not going to arrest someone for making a phone call
in a locker room," he said. "We're counting on people to
just say, 'Shut it off.' "

Though they are permitted in gym areas, patrons say they
often leave their phones in the car when they work out
there because they usually have to use the changing room
first, where the phones are not permitted.

Nancy Funteas, a business owner, said she was worried about
missing calls while at the park district gym. "You feel
protected in the locker room, but out here if you need it
for business it's not a good idea," she said after
finishing an upper-body workout.

Desi Leyba, a 30-year-old gym member, admitted: "Sometimes
I forget and I bring it in. I wonder if they're going to
make a case of it."

L. Richard Fischer, a Washington lawyer who deals with
privacy issues, said the park district's ban goes too far.
"People have to pass laws very carefully and recognize
there is a broad but flexible standard of reasonable
expectation of privacy," he said. "You have to do it very
selectively or you really are treading on people's rights."

Banning cellphones from some locations could invite
lawsuits from people who might have to use a phone in an
emergency and be unable to summon help, he said.

"What they've done is go to the extreme," he said. "They've
threatened the rights of the majority of people to try to
control the conduct of a few, and that's just beyond the
balance." He added that the only way to deter people from
taking photos of others was to punish them for taking
surreptitious pictures rather than banning the phones.

Des Peres, Mo., a St. Louis suburb, passed a more limited
and specific law in September that bans taking photos of a
person who is partly unclothed without consent in an area
where they should expect privacy.

"The ordinance would provide the city with some teeth for
the ability to prosecute someone," said Jason McConachie,
the assistant city administrator, adding, "I don't believe
there is any way to proactively enforce it, like putting
police officers in locker rooms." He said the city would
help an aggrieved citizen pursue legal action against
someone for taking pictures in a restricted area without
consent - an occurrence as yet unreported.

Some courthouses have extended existing bans on picture
taking to include camera phones. Representative Michael G.
Oxley of Ohio felt that the federal government should draft
its own provision, so he and a fellow Ohio Republican,
Senator Mike DeWine, broadened the language in a law
proposed by Mr. Oxley, the Video Voyeurism Prevention Act
of 2003, to include camera phones.

"I think if we can nip it in the bud, we can avoid a lot of
embarrassing situations or gross invasions of privacy," Mr.
Oxley said. "Our bill would only apply to federal property,
but it would spur the states to pass similar legislation."
The law would prohibit the use of camera phones in
restrooms in federal park districts and federal buildings.
Breaking the law would result in a fine, up to a year in
prison, or both.

Chris J. Hoofnagle, legislative counsel for the Electronic
Privacy Information Center, a nonprofit group in
Washington, acknowledged that the proliferation of camera
phones had helped give new life to "up skirt" or "down
blouse" photography.

"Clearly, this is going to get worse," Mr. Hoofnagle said.
"There is a remarkable lack of sensitivity to the subjects
of the photographs." But he said changing the norms of
society, rather than its laws, was likely to be a more
effective response.

Barry Steinhardt, director of the year-old technology and
liberty program for the A.C.L.U., suggested that the
camera-phone quandary reflected a larger problem: that
technology has developed at the speed of light and American
law is "stuck in the Stone Ages."

"The rest of the developed world have fairly advanced laws
that incorporate privacy and fair information that we
invented in the 1960's but didn't implement," he said.

While he would not comment on specific measures in Chicago
and elsewhere, he said that privacy laws were justifiable
but had to be very specific. What the United States needs,
he added, is to establish a privacy commissioner to enforce
existing rules and investigate the need for new ones.

Technology for surveillance and data gathering is "becoming
more powerful every day," he said. "In the U.S., our
response to this has been to bury our heads in the sand and
say, 'It'll all work out.' "

Meanwhile, cameras are becoming not only more numerous
among the nation's 160 million cellphones, but also more
capable. Alex Slawsby, an analyst with IDC, said that by
next year the typical camera phone sold in the United
States would have a resolution of at least one megapixel,
about three times the current average - doing wonders, no
doubt, for the rendering of sloppy restaurant patrons.

Whatever indiscretions arise in a camera phone's use, the
makers plead, don't blame the equipment. "There are people
who would use things they shouldn't," said Keith Nowak, a
spokesman for Nokia. "There is not a product made that
somebody somewhere with a good enough imagination couldn't
figure out how to misuse."